Tag Archives: cross-examination

Some Ways To Take Down Your Opponent’s Expert

0412rodneytrial6Here are some ideas, courtesy of Professors McElhaney and Mauet, on effectively cross-examining your opponent’s expert witness at trial.

1. Make Him or Her Your Own Expert. Professor McElhaney suggests you look for places where your opponent’s expert agrees with your theories in the case. For example, if, in a personal injury case, both experts mostly agree on the severity of the damages and future treatment, but differ on causation, focus on where there is agreement. He says:

“Note that the defendant’s own doctor admits that the plaintiff will be subject to sudden seizures for the rest of his life; that this form of epilepsy can only be treated, not cured; and that the plaintiff’s condition can put him out of work as a machinist and means he can never drive again.

If you have a strong case on causation, you may decide it is better to make this witness your own on the issue of damages than to try to beat him down on the subject of cause.” (Litigation (ABA 1995) 165.)

2. Attack His or Her Qualifications. “No matter how well-qualified the witness,” McElhaney reminds us, “there is always a higher level he has not reached.” (Id.) Used subtly, this can also serve to bolster your expert’s credibility if he/she has better credentials.

3. Narrow His or Her Expertise. Professor Mauet  points out that, “[o]ften an expert will appear to be highly qualified, yet his actual expertise and experience are in areas different from those involved in the case. The cross-examination technique is to build up the witness’ real expertise, then show that this particular expertise is not directly applicable to the type of case on trial.” (Fundamentals of Trial Techniques (3rd Ed. 1992) at 266.)

4. Attack His or Her Facts. I see two possibilities here. One is if you can establish an opinion rests on a faulty or controversial factual premise, such as a date, measurement or time. The other, highlighted by McElhaney, capitalizes on the fact the expert did not do factual investigation himself, but is relying instead on the reports of others. He gives an example of an effective examination:

“Q. Doctor, can we agree that your opinion can be no better than the information on which it is based?

A. Well, yes, I guess so.

Q. If the information you have is not accurate, then the opinion would have to suffer too?

A. Of course.

Q. Which is why you would rather gather the information yourself than have to trust some source you have not worked with before?

A. Absolutely.

Q. But you were not given an opportunity to do that in this case?

A. Well, not exactly. No, I wasn’t.” (Litigation, 167.)

5. Vary The Hypothetical. McElhaney explains this approach as follows:

“You are permitted to change the facts around to see at which point they alter the expert’s opinion — depending on whether the question on direct examination originally was asked as a hypothetical.

You can insert facts you feel were left out on direct, or take out facts you feel should not have been included.” (Id.)

Let me go on record here that I view this as an advanced technique, and an opportunity to ruin an otherwise solid cross-examination. Ideally, you would have covered this ground with the witness in a pre-trial deposition, so you know what the answer should be and can hold the witness accountable if he/she strays. Otherwise, an experienced expert might hand you your head on a stick if you are not meticulously prepared.

6. Use The Expert To Bolster Your Own Credibility. Mauet suggest it can be “useful to cross-examine an expert to establish your own expertise in the subject. You can do this by defining technical terms or describing technical procedures and having the expert agree that you have defined or described them correctly. Use a treatise to obtain accurate definitions and descriptions. If this expert disagrees, you can impeach him with the treatises.” (Fundamentals, 267.)

7. Establish His or Her Compensation Bias. Mauet writes: “Inquire into professional fees charged and whether they have already been paid.” But he reminds us to “[k]eep in mind . . . that trials are a two-way street. Your opponent can do to you what you contemplate doing to him. Before pursuing this approach, make sure your own experts are less vulnerable than your opponent’s.” (Id., 266.)

8. Identify Additional Steps The Expert Did not Take. Mauet suggests we “[d]emonstrate that the witness did not do all the things a thorough, careful expert should have done. Demonstrate that a variety of tests could and should have been performed to arrive at a reliable opinion in this case.” (Id., 267-68.)

There. Now go get ’em.


Use A “Guerilla” Mock Jury To Prepare A Witness For Cross-Exam

alg-carneglia-sketch-jpgAgain and again the message I hear from accomplished trial lawyers is that preparation is the absolute key to success in the courtroom. I previously wrote a post endorsing what I will term a “guerrilla” mock trial exercise as a valuable component of this preparation.

Why “guerrilla”? While firms across the country will gladly perform Cadillac-quality jury research, using state-of-the-art facilities and carefully selected mock jurors, this requires a level of investment that is far outside the budget for most parties facing a trial. A “guerrilla” mock trial, in which  you invite office staff, friends or even relatives to act as jurors, and use whatever space is available, can provide a reasonably priced alternative to a full-blown mock trial, rendering the unquestionably useful exercise available to parties that aren’t Fortune 500 companies. Just be sure to validate the jurors’ parking and buy them lunch.

In a perfect world, we would have the opportunity to present every aspect of the case to multiple sets of mock jurors before the big day. Since we live in the real world, however, I’ll focus on one aspect of mock trial presentation that I’ve personally found useful: preparation of one or two key witnesses for their cross-examination. In fact, doing direct and mock cross-examinations, in front of mock jurors, can be an excellent way to prepare a witness who is nervous, inexperienced at testifying or otherwise expected to struggle on the stand.

What is involved? First, I recommend running through several mock direct and/or cross-examination sessions alone, with no jurors present. It is hoped these preliminary exercises will smooth out and/or help identify particularly rough areas of examination. When the jurors are present, both counsel and the witness should treat the exercise as a dress rehearsal, taken seriously, without interruption.

It can be useful to provide the mock jurors with questionnaires following the examination, asking specific questions. For example, if the witness is expected to be presented with potentially damaging impeachment evidence during her cross-examination, it could make sense to ask in the questionnaire something like: “Did the evidence that _________ make you question the witness’s credibility?”Alternatively, if you are presenting a direct examination of a witness, and there is concern about the witness’s ability to provide a clear explanation, the questionnaire could ask: “Was the witness’s explanation of ______________ completely clear? Was it confusing? If so, what made it confusing?”

Another idea is to combine a mock opening statement presentation with examination of one or two witnesses. Jury consultants often present mock juries with “staged” questionnaires, to see how jurors receive and process new information. For example, jurors can be asked to complete a questionnaire following the mock opening statement. Then, they can be asked to complete an additional questionnaire following the mock direct and/or cross-examinations. Learning how the mock jurors process new information in the context of the case can help counsel develop a strategy for dealing with potentially damaging evidence–one of the great benefits of jury research.

It is a good idea to videotape the examination. This makes it possible to spend time after the mock trial reviewing the witness’s posture, demeanor or other issues both alone and, if necessary, with the witness.

A couple of additional thoughts. First, it is a good idea to reinforce the notion that the mock trial and any of the information discussed during the mock trial, should be treated as confidential. Remember, too, that there is no attorney-client privilege covering information conveyed to mock jurors, so take care not to inadvertently waive the privilege. Second, if the budget allows for a jury consultant to participate in the mock trial, this can be hugely helpful. Consultants have extensive training, and have typically participated in many, many mock trials and/or other focus group work and will bring an entirely different dimension to the analysis.

So, next time you’re getting ready for trial, think about incorporating a “guerrilla” mock trial as part of your preparation.


Three Ways To Control An Evasive Witness On Cross-Examination

Least Weasel

Least Weasel

One of the biggest challenges of cross-examination can be maintaining control of an intentionally difficult or evasive witness. Professor McElhaney warns that, “once you lose control of a witness, it is hard to get it back.” (Litigation, at 124.)

What are we talking about? Let’s say you ask a witness something he doesn’t want to admit, such as a doctor who doesn’t want to admit he elected not to perform a useful diagnostic procedure (and he probably should have). So, instead of agreeing, “No, you’re right. I did not perform a spinal tap on the patient,” the witness launches into the following:

“I’m afraid you don’t understand the distinct risk involved in an invasive diagnostic procedure such as a lumbar puncture or spinal tap, as it is called. In addition to considerable expense and pain, there is a real possibility of permanent neurological injury.” (Id.)

Blah. Blah. Blah.

McElhaney offers these suggestions to deftly maintain control when you come up against a witness who evades, changes the subject or answers a different question.

Simply Re-Ask The Question Verbatim

This is especially powerful if the members of the jury have listened closely and it is a simple question, devoid of ambiguity. They, too, are thinking “Speaking zie English?” and losing respect for the witness minute-by-minute.

Re-Ask The Question In A Way That Demonstrates Your Witness Is Behaving Weasel-Like

Going back to the above example. If the original question, which drew the evasive response was: “Doctor, did do a spinal tap on the patient?” it can be effective, when re-asking the question, to phrase it as follows:

“Pardon me, Doctor, does that mean you didn’t do the spinal tap on Mr. Murphy?” (Id. at 125.)

This has the double benefit of establishing, not only that the doctor did not perform the test, but also that he was being evasive.

Tell The Witness You’re Re-Asking The Question

This is perhaps best used when the witness has twice tried to evade the question or answer a different one. On the third try, it should go something like this:

“Doctor, we’re talking now about what testing you performed on your patient, Mr. Murphy. I’ll ask you again, you didn’t perform a spinal tap on Mr. Murphy, did you?”

The good professor also suggests (1) you keep your questions on the short side, since longer questions, with more qualifiers, create more opportunities to subtly disagree or qualify an answer; and (2) try to adhere to the rule against asking open-ended questions, since you’re opening the door and basically asking the witness to assume control and talk about whatever he wants. (Id. at 126.)


Cross-Examination: Equal Parts Preparation And Spontaneity?

tredEverything I’ve ever read and heard about trial preparation, including cross-examination, points to preparation as the single most important element of success. I know that strategy has always served me best. But what about the role of spontaneity? Surely, it’s not for new or uninitiated trial lawyers. But a recent post at The Velvet Hammer, in which Karen Koehler, an experienced trial lawyer, describes her experience cross-examining an expert at trial, highlights spontaneity as a crucial part of her strategy. She says:

“Us lawyers spend a lot of time preparing for cross, thinking about cross,  going to classes to learn about cross, and basically obsessing about cross and scaring ourselves to death over the prospect.  But here is the truth.  There is no one perfect way to do cross that works on all expert witnesses.  There is no magic bullet that will work every time.  Did I read his report in advance – yes.  Did I read a few depositions he had given before yes (thanks Ben Wells).  Did I make some notes – yes.  Do I know the chapter approach – yes.  Do I know the rules approach – yes.  Have I gone to reptile – yes.

But in truth, I do not know what I’m going to do in cross until Jodi sits down and it is my turn.  Being able to be in the moment.  Not focusing on obscure minutiae.   Being able to figure out how the message can be conveyed to the jury as quickly and powerfully as possible.  This is what is needed in cross.  At least for me.” (Emphasis added.)

In Cross-Examination: The Mosaic Art, John Nicholas Iannuzzi discusses this intersection between preparation and spontaneity. He says:

“[A]s you cross-examine on your feet, even if you have a full-blown cross-examination script in hand, you are not hide-bound by that script, but are continually revising and adjusting the cross-examination to accommodate the twists and turns that inevitably arise as the witness twists and turns to elude the thrusts of your questions. Therefore, that capacity and flexibility to improvise and formulate cross-examination quickly, while on your feet, is the same capacity which permits you to formulate your attack well, quickly, and professionally, despite the shortness of preparation time.” (p.127)

The key element here would seem to be confidence. Solid preparation builds confidence. This also holds true when taking depositions. If I am for some reason ill prepared, I remain glued to whatever outline I’ve created. When extremely well prepared, I feel far more comfortable drifting from my script, comforted by the knowledge it is available for me to retreat to, if necessary.

It would seem, then, that  preparation and spontaneity do not play equal roles, since spontaneity thrives on preparation. For most of us (who are not Robin Williams) the converse is probably not true.


Temper That Temper During Cross-Examination

DSCN2840-220x165“We got a kinder, gentler,
Machine gun hand” – Neil Young

There is the temptation, it’s almost primal, to be derisive, if not outright mean, when cross-examining a witness who has lied in the past or is lying on the stand. Even if it’s only theatrical, to provide an example to the jury how they should regard the witness with suspicion or contempt, it seems almost natural to treat her with disgust.

But it’s important to bear in mind that, even if the substance of the cross-examination establishes the witness is a liar or unsavory individual, the jury might not reward an examining lawyer–or his client–if he crosses the line. The real challenge, however, comes when litigating a case on the road, in a venue whose culture draws “the line” of civility differently than an attorney’s home court. I’m thinking here about an experience my colleague had some years back when he (a Los Angeles lawyer) tried a civil case in Hawaii.

I’ve visited Hawaii a few times, but never had an opportunity to conduct business of any kind beyond securing a reservation for dinner or a scuba dive. Frankly, I’ve never given a thought about how Hawaiian citizens would receive a cross-examination of a witness differently than someone from Los Angeles. But it turns out that they don’t cotton well to a lawyer who takes a harsh tone to a witness during examination. This became clear to my colleague (this is hearsay, of course, I wasn’t there) after he cross-examined an important witness using a less-than-gentle tone. Apparently it was clear to everyone in the courtroom that the jurors did not react well as the witness was being subjected to a tone of questioning we Californians might consider perfectly appropriate.

That night, in preparation for the following day of testimony, it was decided that our local counsel, a native Hawaiian, would handle the cross-examination of the next adverse witness. I am told the contrast between the his tone during cross-examination, gentle, less confrontational, like “a knife cutting through heated butter,” and my colleague’s examination the previous day, was palpable. Let me make clear that my colleague’s cross was not over the top at all,† just consistent with how we would take such a witness here in Los Angeles. The difference was simply that the Hawaiian jurors do not appreciate the kind of confrontational tone we might employ when addressing a witness in cross-examination.

This highlights a concern we should always have when litigating, or even transacting any king of business, in a venue that is culturally different from our own. When faced with a trial in a culturally unfamiliar venue, I would always recommend involving local counsel, if only to advise about these kinds of cultural differences.

†In fact, it was not a “temper” or anger issue, at all. The title of this post is probably an unfair misnomer.


Knowing When To Ask Non-Leading Questions On Cross-Examination

kokokokokjjFrom Day One it is hammered into the head of every lawyer headed for trial: Ask Only Leading Questions. But is this truly gospel?

McElhaney, quoting Mauet and others, doesn’t think so. Not only does the repetition of “Isn’t it true that . . .” become tedious and tiring, it limits the examiner’s ability to expose the witness as a braggart or someone giving well-rehearsed testimony.

He also offers an excellent illustration of a circumstance in which use of non-leading questions can actually produce a more powerful result. He describes a lawyer trying a medical malpractice case involving a brain-damaged newborn. At deposition, the doctor was asked who had the duty in the particular hospital to resuscitate a child who wasn’t breathing: the doctor, nurse, anesthesiologist–who? The doctor responded: “We really don’t have any rules. It’s kind of a grab bag.” (McElhaney, Litigation, 183.)

McElhaney points out that the lawyer could have covered the while point during cross-examination at trial with one leading question:

“Q.  Doctor, you really don’t have any rules for who is in charge of infant resuscitation. It’s kind of a ‘grab bag,’ isn’t it?

A.  I guess so.”  (Id.)

Instead, he advocates a series of questions calculated to make the admission and use of the unfortunate term “grab bag” more powerful.

“Doctor, explain the hospital’s rules about who has the duty to resuscitate a newborn child who is not breathing.

(The doctor tries to sugarcoat it a little.)

A.  Well, of course, it’s a concern that everybody has, so there is not exactly a precise set of guidelines.

Q.  Pardon me, Doctor, but we’ve talked about this before?

A.  Yes.

Q.  And that’s not what you told me then, is it?

A.  No.

Q.  What did you tell me then?

A.  It’s kind of a grab bag.

Q.  A ‘grab bag’?

A.  Yes.” (Id.)

Something McElhaney does not highlight, but I think is hugely important, is that, because of the doctor’s prior deposition testimony, the examiner never lost control of the witness. Regardless how the doctor may have tried to squirm around and potentially offer a new hierarchy of responsibility for resuscitating a child (perhaps he had misspoken in his deposition and, on reflection, concluded that the duty falls to the anesthesiologist), the examiner had crisp prior deposition testimony available to keep the doctor in line.

“Ask only leading questions” is definitely one of the ten commandments of cross-examination, but it’s a rule that can be broken when the examination is handled carefully and where the resulting testimony is expected to be more powerful.


Duck Talk Your Way Through A Blind Cross-Examination

In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination.  As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.”  But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.

In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation.  One of these, which he terms “Duck facts,” I particularly like.

Duck facts refer to things for which you don’t need proof.  “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.”  The classic example of this is where the witness tries to testify to something that makes no sense at all.  McElhaney’s example is pretty good:

“Q.  You say Schultze didn’t throw the bowling ball at Malone?

A.  No way.  He just dropped it.  It was an accident.

Q.  So Schultze just dropped the bowling ball?

A.  That’s right.

Q.  And then it just rolled onto Malone’s foot?

A.  That’s right.

Q.  Uphill?”

For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills.  I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.”  I’ll get to practice my blind cross skills  in real-time.


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